Findings Of Fact Petitioner owns land adjacent to, west of, and within 600 feet of Interstate 95 in Port St. Lucie County, Florida. The land comprises approximately 17.7 acres and is not within the city limits of a municipality. The land is designated commercial in the Comprehensive Plan adopted by the County. The zoning designation was changed on March 27, 1990, for one half acre of the land approximately 2000 feet north of Okeechobee Road. The zoning designation for that half acre was changed from Commercial to Commercial General pursuant to Resolution 90-80. The purpose of the change in zoning designation, as stated in Petitioner's Petition for Change to the Official Zoning Atlas of St. Lucie County, was to permit the construction of an advertising billboard. The change in zoning designation obtained by Petitioner was necessary to permit the location of a sign on Petitioner's half acre. No ordinance or other local regulation defines the uses permitted for land designated in the County's Comprehensive Plan as Commercial. 1/ The Chairman of the Board of County Commissioners for St. Lucie County explained in a letter dated February 6, 1991, that the zoning designation of Commercial allows and encourages the application of the Commercial General zoning designation. The letter did not state that a change in zoning designation from Commercial to Commercial General was unnecessary in order to permit the location of a sign on Petitioner's half acre. Petitioner elected to apply to the County for a change in zoning designation from Commercial to Commercial General, and the County approved Petitioner's application. Petitioner applied for a sign permit on July 3, 1990. Respondent denied Petitioner's Application For Outdoor Advertising Sign Permit on July 26, 1990, on the ground that the change in zoning designation for one half acre of the land was enacted specifically for billboards in violation of Section 479.07(10), Florida Statutes. 2/ The Chairman of the Board of County Commissioners determined in his letter dated February 6, 1991, that Respondent's determination of "spot zoning" is invalid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for a sign permit be DENIED. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of April, 1991. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 5th day of April, 1991.
Findings Of Fact l. Clare A. Guenther is the sole owner and president of Western Gate Sign Company located at 8604 North Old Palafox in Pensacola, Florida. Western Gate had acquired Smith Advertising in February of 1977. Mr. Guenther testified that he had been told repeatedly by a former DOT inspector that he did not need a permit tag on the sign in question because it had been "grandfathered in". However, this former DOT employee was not present at the hearing for testimony. Mr. Guenther acknowledged that Western Gate Sign Company had received a letter from DOT dated December 18, 1978, notifying all outdoor advertising licensees and permittees that permits will be required for all signs within city or town limits, and allowing a 60 day period within which permits could be applied for. At this time, however, Mr. Guenther was under a doctor's care, and he relied totally on the former DOT inspector in most matters relacing to road signs. Nevertheless, no application for a sign permit was filed by Western Gate for the subject sign during this 60 day time period. Mr. Guenther testified that the representatives of Smith Advertising who were familiar with the erection of the sign in question passed away in October of 1982, and Mr. Guenther admitted that he was not present when the sign, was erected. He had no documents other than a lease dated September 9, 1971 to show when the subject sign was actually erected. Sometime during the years 1977 or 1978, Western Gate changed the face of the subject sign by replacing the boards. This amounted to a replacement of more than 25 percent of the value of the entire sign. Emory F. Kelley, District Administrator, Outdoor Advertising, Department of Transportation, is responsible for controlling outdoor advertising in the 16 counties of the third district, including Escambia, on federal aid and primary roads and interstate highways. He makes decisions on applications for outdoor advertising permits based on his review and the recommendation of the inspector who viewed the site. The sign in question is within the city limits of the City of Pensacola, and is located approximately 700 feet north of State Road 289-A on Interstate Highway 110, facing south. It is a DOT policy to consider applications for sign permits on a first come, first serve basis. When the permit application was received from Western Gate Sign Company, it was transmitted to Sandi Lee, a local DOT inspector, to be checked out. Ms. Lee's inspection showed that there were existing permitted signs less than 1,000 feet from the site of the .sign in question, on the same side of the road, facing the same direction. Using the DOT computer inventory, the permitted sign south of the sign in question is one with permit number 8737-10 at mile 1.55. The permitted sign north of the sign in question is one with permit number AR559-10 at mile 1.75. The milepost locations indicated on the computer inventory begin at Maxwell Street on 1-110 and move in a northerly direction. The distance between Maxwell Street and State Road 289-A is approximately 1.5 miles, which would place the southerly permitted sign, number 8737-10, .05 miles or approximately 264 feet north of SR 289-A, and place the northerly permitted sign .25 miles or approximately 1320 feet north of SR 289-A. Permit number 8737-10 was approved an May 7, 1976, and permit number AE559-10 was approved on March 4, 1982. The application for the sign in question, submitted by Western Gate Sign Company, was dated June 2, 1982, and was received in the DOT district office on June 3, 1982. Sandi Lee, Outdoor Advertising Inspector, Department of Transportation, performs field inspections for permit applications on federal aid, primary and interstate highways. She conducted the field inspection for the subject permit application. Using a roll-a-tape device, she measured the discance of the sign in question as approxiately 350 feet from a previously permitted board. The subject sign is on the same side of the road as the permitted sign, facing in the same direction, located inside the corporate limits of Pensacola, on a section of interstate highway open to travel by the public. It is a six foot by twelve foot sign which is visible from the interstate highway and is located 20 to 25 feet from the right-of-way line.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Western Gate Sign Company for an outdoor advertising permit for a sign on Interstate Highway 110, seven hundred feet north of State Road 289-A, facing south, be denied. THIS RECOMMENDED ORDER entered this 2nd day of March, 1983 Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1983. COPIES FURNISHED: Clare A. Guenther, President Western Gate Sign Company 8604 North Old Palafox Pensacola, Florida Vernon L. Whittier, Jr., Esquire Department of Tansportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Paul A. Pappas. Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact The Respondent, E. T. Legg and Company, owns the sign which is the subject of this proceeding, located on U.S. 441 or S.R. 7, approximately 1,117 feet north of Snake Creek Canal in Dade County, Florida. The sign faces north and south. The Department issued permits for a sign in 1979, one for the north face and one for the south face. These permits authorized a sign on U.S. 441 (State Road 7), approximately 550 feet north of Snake Creek Canal in Dade County, Florida. It is not clear from the record whether these permits were issued for the subject sign or for another sign but the permit tags issued for these permits were affixed to the subject sign until these tags were stolen. The Respondent's permit applications stated that the sign to be erected would be located 500 feet from the nearest existing sign. Subsequent to the Department's issuance of the permits for the subject sign, it determined that the Respondent's sign had been built closer than 500 feet from the nearest sign. The Respondent stipulated that there is less than 500 feet between the subject sign and the sign nearest to it. The sign nearest the subject sign is also owned by the Respondent. It is a two-faced permitted structure located south of the subject sign, and it was in place when the subject sign was erected. In 1981, the Respondent applied for tags to replace the permit tags the Department had issued pursuant to the 1979 application. These tags had been stolen. Replacement tags were not issued by the Department for the reason that it had determined the subject sign to be in violation of the spacing rule requiring 500 feet between signs. Permit fees had been paid by the Respondent through the year 1981. In October of 1981, the Department initiated this proceeding, charging the Respondent with violations of Chapter 479, Florida Statutes for not displaying permit tags on the subject sign, and for violating the spacing rule by locating this sign within 500 feet of an existing sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter its Final Order dismissing these charges against the Respondent, E.T. Legg and Company, subject to payment by the Respondent of all permit fees due for the years 1982 through 1986. THIS RECOMMENDED ORDER entered this 31st day of July, 1986 at Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1986. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Charles C. Papy III, Esquire 201 Alhambra Circle Suite 502 Coral Gables, Florida 33134 Hon. Thomas E. Drawdy Secretary Department of Transportation 562 Haydon Burns Bldg. Tallahassee, Florida 32301 A. J. Spalla, Esquire General Counsel 562 Haydon Burns Bldg. Tallahassee, Florida 32301 =================================================================
Findings Of Fact Respondent, Henderson Sign Service, erected and owns a sign located on Interstate Highway 10, 1.5 miles east of State Road 276 in Jackson County, Florida. The sign is visible from the main traveled portion of Interstate Highway 10. At the time of the filing of the petition in this cause, and as recently as October 2, 1978, no permit tag was affixed to the sign structure. In addition, the sign structure is located 123 1/2 feet from the white line on the highway at the outside edge of the eastbound lane. At all times material to this proceeding the sign in question bore advertising copy which read "Plantation House, pool, bus tour, restaurant, Quality Inn". Respondent had not applied to DOT for the issuance of a permit for the sign in question as of the date of the hearing in this cause. Any proposed finding of fact submitted by the Respondent and not incorporated in this Recommended Order was either rejected or deemed irrelevant.
Findings Of Fact Respondent owns a sign within 660 feet of the I-4 erected alongside SR 424A (Fairbanks Avenue) outside the corporate limits of Orlando or Winter Park, Florida, on the east side of I-4, an interstate highway. The sign is visible from the I-4 and the face of the sign is nearly parallel to the I-4. The sign is located within the interchange of the I-4, i.e., it is located within two lines running easterly and perpendicular to the commencement of the off ramp and end of the on ramp of the I-4 at the Fairbanks Avenue intersection. The I-4, which is considered to be an east-west highway, runs in a northwesterly-southeasterly direction where it crosses over Fairbanks Avenue, which runs generally east and west at this point. Respondent's sign is located in the vicinity (within 200 to 500 feet) of several signs erected by Peterson Advertising Company before 1971 and which are now permitted as nonconforming signs. These signs are erected along the curve of the eastbound (which at this location moves in a northwesterly direction) off ramp and are at varying angles with the I-4, but all can be seen from the I-4. Respondent's sign can be seen by both east and westbound traffic on the I-4; however, it is closer to the eastbound lane of traffic. Before the construction of this sign was completed, Respondent was advised the sign would not be permitted because it was within 1,000 feet of another sign on the same side of the I-4 facing in the same direction and within 500 feet of the interchange.
The Issue Did the Department of Transportation properly issue Notice of Violation No. 10B LJM 1997 197 to Respondent pursuant to Chapter 479, Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Deron's owns the property located at 4212 Hammond Drive (State Road 542) which is on the east side of Hammond Drive. Deron's business establishment is located at 4212 Hammond Drive. Deron's primary business activities such as screen printing, embroidery, and sales are conducted at 4212 Hammond Drive. Eastwood Self-Storage (Eastwood) is located at 4207 Hammond Drive, which is on the west side of Hammond Drive. Eastwood is in the business of leasing storage spaces to the public for self-storage. Deron's currently leases three self-storage spaces from Eastwood where Deron's primarily stores its excess inventory and supplies. Deron's does not have a business office located at 4207 Hammond Drive and does not conduct any of its business activities such as screen printing, embroidery, and sales at the self-storage units located at 4207 Hammond Drive. The sign subject to this proceeding (sign) is located at 4207 Hammond Drive on property owned by Eastwood. Deron's paid Eastwood to erect the subject sign which sits on top of an on-premise sign owned by Eastwood. Deron's does not pay any rent for the use of the sign to Eastwood or anyone else. The sign advertises Deron's business and the business activities performed by Deron's at its establishment located at 4212 Hammond Drive. Hammond Drive separates the property owned by Eastwood where the sign is located (4207 Hammond Drive) from the property owned by Deron's at 4212 Hammond Drive upon which Deron's business establishment is located. The sign is located within 660 feet of, and is visible to, State Road 542, a jurisdictional highway for purposes of enforcing outdoor advertising. Because of the location of the subject sign (within a 1000 feet of another permitted sign on the same side of Hammond Drive), it does not meet the permitting requirements of Chapter 479, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding the subject sign to be in violation of Chapter 479, Florida Statutes; and it is further recommended that Deron's be required to remove the sign from its location. DONE AND ENTERED this 31st day of December, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st of December, 1998. COPIES FURNISHED: Thomas F. Barry, Secretary ATTN: James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Andrea V. Nelson, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 John G. Wood, Jr., Esquire 3601 Cypress Gardens Road Suite A Winter Haven, Florida 33884
The Issue Whether the Respondent is in violation of Sections 479.07(1) and 479.11(1) and (2), Florida Statutes.
Findings Of Fact Fred C. Glass, Outdoor Advertising Inspector, testified that he had inspected an outdoor advertising sign located on State Road 8 (I-10) 3.48 miles south of State Road 53 which was not located within a municipality. Said sign was located 31 feet from the right of way of I-10. His inspection revealed that said sign did not have a permit tag affixed. Located near the sign was a small building without windows and a gas pump. There was no one present on the site when inspected. The building and pump wore locked up. Glass testified that the pump and building did not look as if it had ever been used. Glass identified Composite Exhibit 1, as polaroid pictures he had taken on October 3, 1975 at 3:00 p.m. and they were received into evidence. From his duties Glass would have been aware of any application received for such a sign, and he stated he had never received an application. Glass said he had not talked with Davis about the sign, but concluded it was Davis' sign from the nature of the sign's advertisement, and the fact that the J. B. Davis' service station was located at the next exit. J. B. Davis testified that the sign was not his but was located on the site of a service station belonging to L. H. Thurman, Route 2, Lee, Florida. J. B. Davis identified Exhibit 2A as a copy of Thurman's Sales Tax Certificate and Exhibit 2B as Thurman's gasoline Dealers License which David had obtained from Thurman. Davis testified that as the gasoline distributor for the counties in the area he supplied gasoline to Thurman who operated the station. He supplied a couple of hundred gallons to Thurman per month. The property where the station is located is leased by Thurman from a Mr. Woods. Davis further testified that one would take the "next exit" to go to Thurman's station.
Recommendation Having failed to show J. B. Davis' ownership of the sign, the Hearing Officer recommends the charges be dismissed. DONE and ORDERED this 10th day of February, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay Hendrickson, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 J. B. Davis, President J. B. Davis, Inc. Base and Duval Street Madison, Florida 32340
Findings Of Fact Petitioner submitted Request for Admissions to Respondent Waller on 17 August 1982, and no response thereto was received from Waller (Exhibit 1). Pursuant to Rule 1.370(a), Florida Rules of Civil Procedure, these requests are deemed admitted. Included therein are the following: The sign in question is an outdoor advertising sign visible to vehicular traffic on I-4 and located within 660 feet of the I-4. The sign has never been issued a permit by Petitioner. The sign was located outside the corporate limits of a city or town at the time it was erected. The sign is not located in a commercial or industrial zoned area or in a commercial or industrial unzoned area. The structure is owned by Respondent Waller. Exhibit 2, a computer printout from the office of the Secretary of the State of Florida, shows Country Village Flea Market, Inc., to have been incorporated July 15, 1980, with all directors having the surname of Waller, and Ferris Waller as president and registered agent. The address of the corporation is the same as the address to which the Notice of Alleged Violation was sent. The area in which this sign is located is zoned R-1A, which is single- family residential, and is located inside the city limits of Plant City, Florida.
The Issue Whether the respondents or some of them erected and maintained outdoor advertising signs in violation of Rule 14-10.006(1)(a), Florida Administrative Code, because more than two advertisements or "messages" were visible to motorists at the same location?
Findings Of Fact Visible to west-bound traffic on Interstate Highway 10 are two billboards both of the same, concededly lawful size, mounted on a single structure, one on top of the other, 1.75 miles east of State Road 69 in Jackson County. The upper sign advertises a Holiday Inn in Marianna. The bottom sign advertises a Best Western motel (yellow logo against black background) and a McDonald's restaurant (golden arches and white lettering against a red background.) Between the two businesses's names on the bottom sign board appears "11 MI EXIT 21" against a white background. Petitioner's Exhibit No. 1 (89-1716T). Also visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure, one on top of the other, 2.4 miles east of State Road 77 in Washington County. The upper sign advertises the Chipley Motel. Over the words "THIS EXIT," the central portion of the lower sign advertises a Stuckey's store. Flanking this central portion, both ends of the billboard are taken up with advertisements featuring petroleum trademarks (a scallop shell and a star.) Petitioner's Exhibit No. 1 (89-1714T). Visible to east-bound traffic on Interstate Highway 10 are two billboards of the same size mounted one on top of the other on the same poles, 1.2 miles west of State Road 77 in Washington County. The upper sign advertises a single business establishment. Underneath, half the sign is devoted to advertising the Washington Motor Inn and half to touting The Outlet Center. Petitioner's Exhibit No. 1 (89-1923T). Visible to west-bound traffic on Interstate Highway 10 are two billboards of the same size mounted on the same structure one on top of the other, 2.7 miles east of State Road 77 in Washington County. The upper sign advises motorists of the proximity of a motel. The lower sign advertises both a Chevron filling station and a Western Sizzlin restaurant, devoting half the panel to each. Petitioner's Exhibit No. 1 (89-1921T). Also visible to west-bound traffic on Interstate Highway 10 is a pair of billboards mounted one over the other at a site 1.3 miles west of State Road 77 in Washington County. The upper panel is devoted exclusively to informing the driving public of a nearby motel. The lower billboard, like the lower billboard located 1.7 miles east of State Road 69, advertises a McDonald's restaurant and a Best Western motel, and does so in a similar bipartite manner. Petitioner's Exhibit No. 1 (89- 1922T) Finally, also visible to west-bound traffic on Interstate Highway 10 is another pair of billboards mounted on top of one another on the same poles, a mile east of State Road 77 in Washington County. The upper sign advertises a McDonald's restaurant. Like the lower sign located 2.4 miles east of State Road 77, the lower sign located a mile east advertises not only Stuckey's, but also Shell and Texaco gasolines. Petitioner's Exhibit No. 1 (89-1924T). A handbook DOT employees use depicts three billboards at one location, over the caption: "One of the three faces is illegal if erected after January 28, 1972. Petitioner's Exhibit No. 2. DOT has not promulgated the handbook as a rule. The evidence did not establish when the billboards in question here were erected. But for Milford C. Truette's perspicacity, these cases might never have arisen. As acting outdoor advertising supervisor for DOT's District II, he told Elsie Myrick, a property and outdoor advertising inspector for DOT, that she "might want to check into ... [the signs involved here] and see that they were in violation." Myrick deposition p. 8. In the subsequently formed opinion of Ms. Myrick, it is unlawful for an outdoor advertising sign to advertise three or more locations at which the same advertiser does business or three or more businesses at the same location, although the proprietor of a single store might lawfully advertise three or more products for sale at the store, and a motel owner is free to advertise a restaurant and a cocktail lounge, at least if they are under the same roof. Respondent's signs are in violation, in Ms. Myrick's view, because, "You're getting across more messages than what you're allowed in a space." Myrick deposition, p. 15. Ms. Myrick thought a sign advertising several stores housed in a single mall would be illegal, but Mr. Truette and Mr. Kissinger, DOT motorist information services coordinator, disagreed. Ms. Myrick rejected the suggestion that common ownership of advertisers would make a difference, but Mr. Kissinger's views on this point were less clear. T.52-3. Mr. Kissinger believes that an outdoor advertising sign can advertise multiple locations at which an enterprise conducts business, or even multiple business entities, if they are all located on the same parcel of real estate.
Recommendation It is accordingly, RECOMMENDED: That petitioner dismiss the notices to show cause issued in each of these consolidated cases. DONE and ENTERED this 20th day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-1714T, 89-1716T, 89-1921T, 89-1922T, 89-1923T, 89-1924 Except for the last sentence in proposed finding of fact No. 4, petitioner's proposed findings of fact 1 through 5 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact were not numbered, but have been treated fully in the recommended order. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwanee Street Tallahassee, Florida 32399-0458 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802
The Issue Whether the structure described in the Department of Transportation's Notice of Violation No. 10B DB 2000 007 (Notice) is in violation of Section 479.07(1), Florida Statutes, and therefore subject to removal pursuant to Section 479.105, Florida Statutes, as alleged in the Notice.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Petitioner is an outdoor advertising company that was formerly known as AK Media. On December 10, 1998, Petitioner (while still known as AK Media) entered into an agreement with NWT Partners, Ltd., the owner of the New World Tower (Building), a "thirty story four (4) sided building" located at 100 North Biscayne Boulevard in Miami, Florida, to lease certain portions of the Building. The lease agreement contained the following provisions, among others: Effective Date. This Lease shall become effective on the later of (x) the date that Tenant provides written notice to Landlord that Tenant has obtained all permits, license and governmental approvals necessary or required to enable Tenant to construct, maintain and operate the Wall Faces and Wall Structures, as hereinafter defined or (y) January 1, 1999 (the "Effective Date"). Tenant shall have ninety (90) days from the date of this Lease to obtain all such permits, licenses and approvals or the Landlord may cancel this Lease. Purpose. The purpose of this lease is for Tenant to construct, maintain and operate painted, printed, illuminated and/or electrical signs on the north and south wall faces of the Building (the "Wall Faces"), and all other uses not inconsistent therewith, including all necessary supporting structures, devices, illumination facilities and connections, service ladders and equipment, and other appurtenances (the "Wall Fixtures"). All construction to the Building, and advertising thereon, including construction drawing and artwork to be furnished by the Tenant shall be subject to Landlord's written approval, which approval shall not be unreasonably withheld. Tenant's Right to Enter and Use. For the duration of this Lease, Tenant shall have the non-exclusive right to enter onto the Property and into the Building and use the Wall Faces for the purposes described in this Lease and any other purposes allowed or required by this Lease and Tenant has the exclusive right to use the Wall Faces Property for advertising. In exercising Tenant's rights hereunder, Tenant may hang or attach the Wall Fixtures to the roof and exterior structure of the Building. Tenant shall maintain the Wall Fixtures at Tenant's cost and expense. Tenant shall pay all utility charges in connection with the operation and maintenance of the Wall Fixtures. Tenant shall be responsible for damage to the Building which is caused by Tenant's operation and maintenance and removal of the Wall Fixtures and shall repair any such damage and restore the Building to the condition it was in immediately prior to such damages at the expiration or termination of this Lease. Term. The term of this Lease is for five (5) years from the "Rent Commencement Date," as hereinafter defined, to the last day of the month during which the fifth anniversary of the Rent Commencement Date occurs (the "Term"). Rent. Tenant shall pay Landlord rent annually, in accordance with the schedule (the "Rent Schedule") set forth on Exhibit "B" hereto, inclusive of all taxes . . . . Contracts. Anything herein to the contrary notwithstanding, Tenant will use its best efforts to obtain contracts (the "Contracts") for advertising on the Building which exceed the amount of the Guaranteed Rent, as set forth on the Rent Schedule. . . . 9. Ownership/Removal. At all times, Tenant is and shall remain the owner of the Wall Fixtures and all signs and permits of any kind in relation thereto, and has the right to remove the Wall Fixtures at any time. . . . Exhibit "B" Rent Schedule Tenant shall pay annual rent to Landlord in an amount equal to the greater of (x) Fifty-five percent (55%) of the gross revenues attributable to advertisements displayed on the North Wall and the South Wall of the Building less any agency fee or commissions not greater than 16 2/3% to bona fide third parties (the "Net Revenues") associated with such advertisements (the "Percentage Rent") or (y) the minimum guaranteed annual rent (the "Guaranteed Rent") hereinafter set forth as follows: . . . The Landlord may terminate the Lease Agreement upon thirty (30) days prior written notice to Tenant if either Wall is vacant for more than one hundred twenty (120) consecutive days during the Term of the Lease and the Tenant has failed to obtain a contract, before the expiration of such notice period, for advertising on the North Wall or South Wall, as the case may be, pursuant to which the projected Percentage Rent under such contract would exceed the Guaranteed Rent. . . . Subsequently, Petitioner (while still operating under the name AK Media) entered into a "bulletin contract" with New York Outdoor, an advertising agency acting on behalf of Supreme International, in which Petitioner agreed, for a fee, to produce and maintain an "outdoor advertising display" for Supreme International on the north wall of the Building. Supreme International sells "Perry Ellis" and "Perry Ellis for Men" brand fashion apparel. In accordance with the "bulletin contract," Petitioner produced an "outdoor advertising display" for Supreme International on the north wall of the Building. The "outdoor advertising display" that Petitioner produced was a large mural more than 100 feet high and more than 60 feet wide. Such a product is referred to in the outdoor advertising industry as a "wallscape." The "wallscape" that Petitioner produced for Supreme International consisted of artwork (a picture of a young woman) and print (the words "Perry Ellis for Men") on a "canvass-type" material that was mounted on a "picture frame" support structure attached to the north wall of the Building. It was located within 660 feet of the nearest edge of the right-of-way of a roadway, US Highway 1 (also known, in that location, as North Biscayne Boulevard), which is a part of the federal-aid primary highway system. The artwork and print could be seen without visual aid by motorists of normal visual acuity travelling on US Highway 1 in the vicinity of the Building. At no time has Petitioner applied for, or obtained, a permit from the Department authorizing it to erect and maintain a "sign," as that term is used in Chapter 479, Florida Statutes, on the north wall of the Building. Petitioner, however, did seek and obtain a Class II Special Permit from the City of Miami. The permit was granted by the Miami City Commission, through the passage of Miami City Commission Resolution 99- 828, at its October 26, 1999, meeting. The printed agenda distributed in advance of the meeting stated the following concerning the permit for which Petitioner had applied: Consideration of approving Class II Special Permit No. 99-0142 for the property located at approximately 100 North Biscayne Boulevard for a sign of a graphic or artistic value. This will allow a mural containing a commercial message. The resolution passed by the Miami City Commission at the meeting read as follows: A RESOLUTION OF THE MIAMI CITY COMMISSION APPROVING THE RECOMMENDATION OF THE DIRECTOR OF THE PLANNING DEPARTMENT FOR ISSUANCE OF CLASS II SPECIAL PERMIT APPLICATION NO. 99-0142, SUBJECT TO THE CONDITION THAT THERE SHALL BE NO WRITING PERMITTED WITH THE MURAL AND OTHER CONDITIONS AS RECOMMENDED BY THE PLANNING DEPARTMENT FOR THE PROPERTY LOCATED AT APPROXIMATELY 100 NORTH BISCAYNE BOULEVARD, MIAMI, FLORIDA, PURSUANT TO SECTION 401 OF ORDINANCE NO. 11000, AS AMENDED, THE ZONING ORDINANCE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED. WHEREAS, the Director for the Department of Planning is recommending approval of Class II Special Permit Application No. 99-0142, with conditions, for the property located at approximately 100 North Biscayne Boulevard, Miami, Florida; and WHEREAS, Zoning Ordinance No. 11000, as amended, the Zoning Ordinance of the City of Miami, Florida, requires City Commission approval of the Class II Special Permit as hereinafter set forth; and WHEREAS, the City Commission after careful consideration of this matter, finds the application for a Class II Special Permit does meet the applicable requirements of Zoning Ordinance No. 11000, as amended, and deems it advisable and in the best interest of the general welfare of the City of Miami and its inhabitants to approve the recommendation of the Director of the Department of Planning to uphold the issuance of the Class II Special Permit, subject to the condition that there shall be no writing permitted with the mural and other conditions as recommended by the Planning Department; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this section. Section 2. The recommendation of the Director of the Department of Planning to issue Class II Special Permit Application No. 99-0142, subject to the condition that there shall be no writing permitted with the mural and other conditions as recommended by the Planning Department, for the property located at approximately 100 North Biscayne Boulevard, Miami, Florida, is hereby approved, and the City Commission finds that the issuance of Class II Special Permit Application No. 99-0142, with conditions does meet the applicable requirements of Zoning Ordinance No. 11000, as amended. Section 3. The Resolution shall become effective immediately upon its adoption and signature of the Mayor. Inasmuch as the words "Perry Ellis for Men" were on the "wallscape" that Petitioner produced for Supreme International, this "wallscape" was not in compliance with the condition imposed by the Miami City Commission, in issuing the Class II Special Permit to Petitioner, that there "be no writing permitted with the mural." On February 22, 2000, Bernard Davis, who, at the time, was the Department's District 6 Roadside Outdoor Advertising Administrator, issued a Notice of Violation (Notice No. 10B DB 2000 007) alleging that the "wallscape" on the north wall of the Building (described above) was "in violation of Section 479.07(1), Florida Statutes, which requires a permit for all outdoor advertising signs not exempted by Section 479.16, Florida Statutes" and directing that the sign be removed within 30 days. Petitioner thereafter requested an administrative hearing on the matter. Prior to the hearing, the artwork and print on the "wallscape" on the north wall of the Building were changed. As of the date of the final hearing in this case, the "wallscape" on the north wall of the Building contained a picture of a man and part of a woman and the words "Perry Ellis," underneath which was written "www.perryellis.com," Supreme International's website address. The Monday and Tuesday before the final hearing (February 5 and 6, 2001), Mr. Davis' successor, C. Jean Cann, went inside the Building to determine whether Supreme International had an "on-premises presence." On Monday, February 5, 2001, Ms. Cann entered the Building at approximately 1:15 p.m. After obtaining information from the Building's Electronic Directory that "Perry Ellis" occupied room 2128, she took the elevator to the 21st floor. After getting off the elevator, she walked down a hallway, where she saw a paper sign on a door which read "Perry Ellis/Supreme International, Incorporated, 2128." When she knocked on the door, no one answered. She waited 10 to 15 seconds and then knocked again, with the same result. She then, unsuccessfully, attempted to open the door. At around 1:45 p.m., she left the Building. Ms. Cann returned to the Building the following day at approximately 11:40 a.m., at which time she spoke to a security guard, who informed her that "Perry Ellis" "was in 2126." She then again went up to the 21st floor, and, on the same door that she had seen the "Perry Ellis/Supreme International, Incorporated, 2128" sign the day before, she saw a paper sign that read "Perry Ellis/Supreme International, Incorporated, 2126." Her knocks on the door, like those of the previous day, went unanswered, and she was again unable to open the door. At around 12:00 noon, she exited the Building. At no time during either of her two visits was Ms. Cann able to ascertain what, if any, business activity Supreme International was engaging in inside the Building.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that the "wallscape" on the north side of the Building is a "sign" that was erected and is being maintained without the Department-issued permit required by Section 479.07(1), Florida Statutes, and that it therefore is a public and private nuisance that must be removed pursuant to Section 479.105(1), Florida Statutes. DONE AND ENTERED this 23rd day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2001.
